Business + Marketing

Copyright For Photo Businesses: 10 Important Questions Answered

January 20, 2021

By Jacqueline Tobin

Illustration by Sharon Ber

Join Rangefinder and WPPI as we kick off our 2021 Reset Series. In January, we go Back to Business with a look at copyright, contracts, taxes and other unglamorous but all-too-important aspects of running a business.

We all know protecting creative assets is super important for any photographer or small-business owner, but some of us don’t even know the right questions to ask when it comes to protecting every facet of copyright for photography businesses. Here, we’ve collected ten important copyright questions that photographers should ask themselves as they look to tighten up the creative assets of business.

[Read: 6 Copyright Infringement Cases Photographers Should Know About]

These are big questions with their own sets of complexities and exceptions to the rule. Click on the questions themselves for more detailed explainers, complete with real-life scenarios and examples, from our resident legal contributor and lawyer-for-artists, Aaron M. Arce Stark.

1. What is the Difference Between Published and Unpublished Photos?

Publishing your work means allowing consumers to legally obtain copies of that work. Posting a photo to Instagram, for instance, is not publishing that photo. To publish a photo means to make commercial use of it—in other words, allowing consumers to legally obtain copies of that work. 

That can get fuzzy. There are plenty of ways to make commercial use of a work without literally offering copies of it for sale. If you are a professional content creator and you make your content available to consumers, even if you do not offer copies of a piece of content for sale, there is a chance that your content will be considered published because that work is building your own artistic profile.

The bottom line is, never publish a work unless you have registered it first.

Our legal writer breaks this down further and explains how this legal distinction came into play for former U.S. president Gerald Ford when he published his tell-all memoir.

This one’s a bit abstract: You can never own an idea, but you can own the expression of that idea—as long as it’s fixed in a tangible medium. To be “fixed in a tangible medium” means that it can be accurately perceived by multiple other human beings at the same time. Something that can’t be simultaneously and accurately perceived by multiple other human beings: the ideas in your head. And in order to “transform” a copyrighted image, you must transform not just the details of the expression but also some aspect of the underlying idea.

Don’t worry, our lawyer-for-artists teases this out more, with examples.

3. How Do You Protect Your Photos on Social Media?

You own any images that you post on Facebook (and Instagram, since it’s owned by Facebook), and you can terminate Facebook’s license over your images by just deleting them. But so long as your image is up on a social media platform, that platform can use it in pretty much any way it wants, including sublicensing the image to a third party.

Essentially, you need an extremely limited usage rights provision in your contract. When you state how clients may use the images, you should state very clearly that a) you own the copyright, b) the client may use the image only for personal purposes and never commercial purposes, c) the client may not alter the image, and most importantly, d) the image must always include proper credit.

You can also get pictures taken down by sending a Digital Millenium Copyright Act (DMCA) takedown notice, which requires platforms to immediately take down potentially infringing content. Our legal contributor explains the nuance behind all of that here.

4. Do You Need Permission to Include Trademarked/Famous Elements in Your Photo?

When it comes to including trademarked images or famous persons in your photos, the degree to which you might get in trouble is the degree to which your photo depends on those trademarked aspects. If you could theoretically replace them with something non-trademarked, you will probably be okay.

But countless factors could change the ultimate outcome. Like most intellectual property law, trademark law—and especially the nominative fair use doctrine—is fuzzy. Trademark infringement rests largely on whether a viewer would be confused about who produced or sponsored the product or image, and that’s a hard standard to pin down. It may change depending on where the photograph is published. Our legal writer explains more of that here.

5. Who Owns the Photos When You Are or Have a Second Shooter?

The answer depends on two important doctrines in the world of copyright: work for hire and joint authorship.

Work for hire happens when one person or entity hires another person or entity to create work with the intent that the hiring party will own the copyright—not the artist who was hired. This occurs with full-time employees for a company or a freelancer with a written agreement stipulating this arrangement. Joint authorship is when the person who creates a work is the author, who initially owns the copyright.

Second shooters would not be considered “joint authors” of images that they captured because no other person contributed to the taking of the photograph. But if it’s unclear who was intended to receive the copyright, or if the collaborators never made a decision or came to an agreement, then the law tends to give the copyright to the person who was able to make final decisions about the publication of the work. More on that here.

6. Are You Properly Using Music for Wedding Films and Highlight Reels?

Purchasing and downloading a song for personal use does not give you the right to use it in an audiovisual production, especially a video that you produce and sell for money. And failing to acquire the proper rights can be a hassle.

You can simply ensure that you always properly license the music and make sure that you are purchasing the right to use the song in an audiovisual work. 

You can also protect yourself when a client brings you a song to use and claims to have the rights themselves (like a song they wrote the song themselves, or a recording of their child performing a song). Your contract should include an indemnification clause that states that in the event that you are sued for copyright infringement on the basis of any song provided by the client, the client will cover the costs of your defense and any judgments against you. This indemnification will not cover you if you negligently fail to license a song. Read more about how to protect yourself with music here.

7. What Can You Do When Your Photo Goes Unexpectedly Viral?

Once a photo is out there, there’s no pulling it back. This is one of the “Rules of the Internet.” That being said, you’re not totally out of options. Using a photo fairly depends largely on whether you make money from it, and so anybody who uses your photo for profit is somebody you can sue. You probably can’t come after people who just post on their social media profiles, but you can come after anybody selling merchandise or copies of the meme in nearly any sense.

You might wonder if you could at least get people to give you credit for taking the photo, even if you can’t make them take it down. If someone is improperly using your copyrighted photo, you can demand they give you credit, but you could also demand they take it down altogether. If anyone is using your photo in a way that’s fair, then you can’t demand they do anything. Copyright law doesn’t require that you give a copyright owner credit. More on all of this here.

8. What If Someone Has Stolen Your Photograph?

You can get injunctive relief to stop the photo thief from ever infringing your work again, but you can’t stop them from infringing other people. Only those people whose work they infringed can sue them for those infringements.

You can report them to consumer fraud bureaus, and there may even be criminal penalties for blatant commercial fraud, but such steps are beyond the scope of most copyright attorneys. You can contact local newspapers and other photographers injured by him and expose him, but that doesn’t get you any money. It’s best to settle for whatever you can get, but don’t waste your money on litigation if you know the thief doesn’t have deep pockets. And retain the right to tell other photographers whose work the thief has infringed about that fact. Our legal writer digs into more of that here

If you’ve recently sent out cease-and-desist letters for your copyrighted work and received any of these responses, rest assured knowing that none of them will stick in a court of law—from “I didn’t know it was copyrighted” to “I hired the photographer so I own the photos.” Our legal writer outlined six of them for you!

10. What If You Have Photo Business Partnership That Breaks Up?

In a best-case scenario, the two of you had an operating agreement that stated that the photographer who took each picture owns the corresponding copyright, and the two of you carefully recorded who took each photo. In such a scenario, the person who took the photo owns it, free and clear of any claim the other party might have, and will both receive all income from its exploitation and maintain sole right to license it.

Let’s say you and your ex-partner incorporated your business into an official limited liability company (LLC) in which both of you were managing partners and equal owners, and your operating agreement states that you will equally divide all income but makes no mention of how your copyrights will be divided in the event of dissolution.

In this case, there are some complications. The copyrights that you and your ex-partner created as part of your business probably belong to the business itself, which means that whatever income you are receiving from your outstanding licenses must be divided among the members equally as it is received, and that the rights inherent in a copyright will also be divided equally among members. If there’s any animosity between you and your ex-partner, this can get dangerous. Our legal writer explains more here.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Stark.Law LLC.

This article is for informational purposes only. Contact a lawyer for legal advice.